Tunnels, Taxes, and the Law

If you've been reading this weblog for a bit you've probably realized that I am a transit booster - hell, a transit nerd, like it says in the sidebar. Whenever we had free play time in kindergarten, I would always run for the train set. So, in that spirit, I'm glad to see that transit seems to have become the major issue so far in the Toronto municipal election, whether it's Rocco Rossi's apparent vendetta against bike lanes and light rail lines, Sarah Thomson's subway boosting, or my own desire to build a transit-friendly city wherein a car is a luxury, but not a necessity.

Two days ago, Thomson unveiled her subway expansion plan, the first major platform plank I've seen from her campaign. Calling it "our key to a strong and dynamic future," Thomson proposes a burst of subway construction the likes of which this city hasn't seen since the 1960s, incorporating a full subway beneath Eglinton Avenue and a Downtown Relief Line. It's certainly a bold vision, and my main complaints with it are the Queen alignment of the DRL, and the termination of the DRL at the Bloor-Danforth line - if we're building an Eglinton line in her world, the DRL should serve both.

The thing about bold visions is that they can't be realized for pocket change. This program of construction would cost billions of dollars that the city of Toronto quite frankly doesn't have. Thomson has two proposals with which to blunt this. The first, partnering with a private corporation in order to build the line, isn't that revolutionary but is something I'm a bit leery about myself, after the London Underground's stab at a public-private partnership ended with UK taxpayers being left on the hook for nearly £2 billion after the private partner went bust.

Her second proposal is to levy tolls on the Gardiner Expressway and Don Valley Parkway, "a reasonable fee" that would be charged during peak hours on weekdays. These tolls would be wholly devoted to the subway expansion plan, and would be strictly temporary - but, then again, so was the income tax back in 1917. It's the sort of idea that other candidates haven't been talking about, and it seems to have significantly raised Thomson's profile in the last couple of days.

There's only one problem. We can't do it.

As I've mentioned before, the fundamental organizing framework of Toronto is the City of Toronto Act, 2006, passed by the Ontario legislature. This firmly establishes what the government of Toronto can do, as well as what it cannot do. One particularly important component of that, in my mind, is Section 267, Subsection 2, which establishes the taxes that the City of Toronto is not authorized to impose. There's one very critical one at the end of it.

13. A tax on the use of a highway (as defined in subsection 1 (1) of the Highway Traffic Act) by a person in respect of equipment placed under, on or over the highway for the purpose of supplying a service to the public. 2006, c. 11, Sched. A, s. 267 (2).

All right, so let's see what the Highway Traffic Act defines a highway. Legal definitions frequently don't dovetail with vernacular usages. It's a brief definition, but important:

“highway” includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; (“voie publique”)

So, according to the laws of the province of Ontario, everything from East Liberty Street to the 401 counts as a "highway." The Gardiner Expressway and Don Valley Parkway most definitely fall into this category, and the City of Toronto Act is particularly clear on the establishment of municipal tolls - we can't do it. Unless Sarah Thomson has discovered a fourth spatial dimension and plans to use tesseracts to charge peak-hour drivers, this plank is already smoking on the campfire.

I'd love to see new subways in Toronto. To promise new subways through methods that are legally impracticable, though, does no one favors.

UPDATE 11:28 AM 03/17: I recognize that we could conceivably go to the province and get the Act amended. The problem I have is that this issue appears nowhere in Thomson's subway plan, and that ignoring this legal reality is, in my opinion, rather disingenuous.

UPDATE 11:02 AM 03/21: I am wrong. The City of Toronto Act is a far more tangled skein than I had first thought. As pointed out by one of the nameless commenters below, Section 116 presents a roadmap for working with the province to authorize road tolls, and Subsection 2 actually states that this takes precedence over what's said otherwise in the Act. I suppose a note tying Section 267 to Section 116 would have been too easy to insert while the thing was being drafted.